The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing three decisions made by the Workers Compensation Board ("WCB") regarding her claim for a right shoulder injury that occurred on March 28, 2009. An oral hearing was held on April 18, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after November 1, 2010;

Whether or not the worker has been overpaid wage loss benefits for the period November 2 to November 29, 2010; and

Whether or not responsibility should be accepted for the worker's left shoulder condition as being a consequence of the March 28, 2009 accident.

Decision

That the worker is not entitled to wage loss benefits after November 1, 2010;

That the worker has been overpaid wage loss benefits for the period November 2 to November 29, 2010; and

That responsibility should not be accepted for the worker's left shoulder condition as being a consequence of the March 28, 2009 accident.

Decision: Unanimous

Background

On March 28, 2009, the worker slipped and fell at work landing onto her left knee and hand. She also injured her right shoulder from the fall noting she had previously injured her right shoulder in January 2009 while lifting a box at home. On August 7, 2009, an MRI assessment found the worker had a large full thickness rotator cuff tendon tear complicated by retraction and atrophy.

On November 13, 2009, the treating surgeon reported that the worker had made some progress with regards to range of motion but still had a lot of pain and was very pain focused. The specialist stated that since the shoulder tear was massive, he would not consider surgical repair.

Subsequent file records showed that the worker was seen by a WCB physiotherapist for an assessment of her shoulder complaints on November 26, 2009 and at the WCB's Pain Management Unit ("PMU") on February 11, 2010. In March 2010, the worker attempted a graduated return to work program but discontinued the program due to a secondary accident at home when she slipped in the bathtub and fractured several ribs.

On July 16, 2010, the WCB wrote the worker to provide details of her graduated return to work program that was to commence on July 20, 2010.

On August 18, 2010, the worker appealed the July 16 decision to Review Office on the grounds that she was not well enough to do the work. The worker stated that she was very limited at what she could do and that she struggled through her shifts with extreme pain and discomfort. She had lots of weakness in her right shoulder and her left shoulder and elbow were also affected from overuse. The worker stated that she needed assistance in getting dressed and with washing or combing her hair. She had difficulty holding a cup of coffee and making her own meals. The worker stated she was unable to use the cash register or the computer at work. The worker noted that the pain also caused her a lot of mental and physical stress. She was unable to concentrate or have a peaceful night sleep.

In a memorandum to file dated August 29, 2010, a WCB orthopedic consultant stated, in part, that there was concern regarding the multiple observations of pain behavior and symptom amplification. He noted that a report on file from the family physician dated May 26, 2010 stated "she has now developed pain and stiffness in the left shoulder, possibly due to over-dependence on the left side." The consultant stated "I do not agree with his opinion on the reason for left shoulder symptoms, a healthy shoulder joint complex should not lose function for this reason, and in my opinion the left shoulder is not a WCB responsibility."

On August 30, 2010, the WCB medical advisor from PMU recommended a reassessment of the worker's condition given that she continued to experience pain on an ongoing basis with limitation of function.

A second orthopedic surgeon assessed the worker on September 27, 2010. Regarding the left shoulder, the surgeon stated: "She almost certainly has rotator-cuff tearing on the left shoulder as well, this side in the absence of significant one-time injury. Therefore, her underlying pathology has been likely long-term cuff impingement, such that at her first injury she likely already had some significant asymptomatic pathology going on, but at that time sustained a significant tear to her rotator cuff and has failed to respond to all conservative treatments."

On September 28, 2010, the worker was seen by a WCB medical advisor and a WCB psychological advisor at PMU.

In a decision dated October 20, 2010, the WCB advised the worker that no responsibility could be accepted for her left shoulder complaints in relation to her right shoulder injury.

On October 20, 2010, Review Office considered the worker's appeal and made the determination that the return to work program effective July 20, 2010 was appropriate. Review Office found that the worker suffered a right rotator cuff tear resulting from the March 29, 2009 workplace injury and it could not find evidence that she was unable to work in any capacity. It found that the return to work program beginning July 20, 2010 involved serving customers, using a cash registrar to ring in an order and minimal computer work. It felt that these duties were in keeping with the worker's physical restrictions.

In a memorandum dated November 4, 2010, the WCB case manager noted that she had gone to the workplace for a meeting to determine what job functions the worker would be capable of performing. The case manager noted that the worker demonstrated no ability to lift either of her arms and she would not even raise her right arm to lift the products off the wall. As for answering the telephone, the worker would bend down and would not lift her arm. The worker indicated that she had a lot of pain and expressed that she was crippled and disabled.

On October 12, 13, 26 and November 2, 4, 5 and 9, 2010 surveillance was taken of the worker's activities.

The worker was examined by a WCB physiotherapy consultant on November 9, 2010.

In a decision dated November 24, 2010, the worker was advised that the WCB was unable to accept further responsibility for wage loss benefits and treatment beyond November 29, 2010 as it was felt that she had recovered from her right shoulder condition and there was no requirement for restrictions or reduced working hours. The decision was based mainly on the surveillance findings which showed that the worker demonstrated active range of motion in both shoulders.

On December 14, 2010, Review Office determined that the worker's left shoulder difficulties were not related to the compensable injury of March 28, 2009. The decision was based on the diagnosis, the delay in reporting a left shoulder injury, the delay in seeking medical treatment until October 2009 and the modified duties the worker performed.

On January 4, 2011, the worker filed an appeal with Review Office regarding the WCB decision dated November 24, 2010.

On February 7, 2011, Review Office determined that the worker was not entitled to wage loss benefits beyond November 1, 2010 and that the worker had been overpaid wage loss benefits from November 2 to November 29, 2010.

Review Office stated that it placed weight on the worker's modified job duties and compared them to the functional abilities she demonstrated on the video surveillance. These demonstrated functional abilities were in clear contrast to the worker's reported abilities, her presentation at the WCB examinations and her presentation at the worksite visit on November 3, 2010. Review Office concluded that the worker was fit to perform her modified work duties as of November 2, 2010 at her pre-accident hours and therefore was no longer experiencing a loss of earning capacity.

Review Office also referred to WCB Policy 35.40.50, Overpayment of Benefits. It found that the video surveillance supported that the worker was deliberately misrepresenting herself and that her actions affected her benefit entitlement. Rehabilitation and Compensation Services were instructed to calculate an overpayment for the wage loss benefits paid to the worker from November 2 to November 29, 2010.

On June 13, 2011, the worker asked Review Office to reconsider its previous decision based on new information from an occupational health physician dated May 10, 2011 as well as a report from an ergonomist.

On July 13, 2011, Review Office advised the worker that it considered the information outlined in her appeal and did not find the evidence to support changing its previous decision. Review Office indicated that it continued to place weight on the surveillance activity as it found that it represented the worker's true abilities.

On October 23, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Policies considered by the panel included:

• Policy 35.40.50, Overpayment of Benefits, which deals with the collection of overpayments.

• Policy 44.10.20.10, Pre-existing Conditions, which deals with cases where a worker has a pre-existing condition which was affected by a workplace injury

• Policy 43.20.25, Return to work with Accident Employer, which deals with return to work involving modified or alternate duties.

• Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, which deals with cases where a further injury is compensable.

The worker has an accepted claim for an injury to her right shoulder. She is seeking further wage loss benefits arising from this injury and is disputing the WCB's determination that she was overpaid with respect to this injury. In addition, she is claiming that her left shoulder difficulties are related to her right shoulder injury.

Worker's Position

The worker was accompanied by an occupational health physician who previously examined the worker and provided reports to the WCB. The physician assisted the worker and provided evidence regarding his opinion on the relationship between the worker's ongoing symptoms and her workplace injury.

The worker advised the panel that she feels she has been wrongly accused by the WCB and employer. She was critical of the WCB's use of video surveillance and upset with the employer actions, including the installation of a camera in a staff area.

The worker said that she injured her right shoulder in a fall at work in March 2009. As a result of the injury, she had to use her left arm to compensate for the injured right arm, which resulted in an injury to the left shoulder. She said that she could not perform the modified duties or the alternate position.

In answer to questions, the worker explained how she was injured. She said that she stepped on something on the floor and suddenly fell, bruising her left knee. She said she landed "…up on my right hip, falling very hard on the right side." She said her whole right side slammed on the floor but she was able to get up quickly. She said she heard a crunch and her shoulder started getting worse, "really, really painful."

The panel noted that the description provided by the worker differed from the description she provided to the WCB in July 2009. The panel noted that the July 2009 description which was recorded in a note by a WCB representative on July 15, 2009 indicates, in part, that:

She could not recall the specific body parts injured but confirms she twisted her shoulder in the process. She did not fall directly on the shoulder, nor did she fall on an outstretched arm.

When asked about the difference in the accident descriptions she provided at the hearing to the description noted on file, the worker denied that she provided the WCB with the description noted on the WCB file.

The worker advised that she did not have problems with her right shoulder before the workplace injury. The worker denied seeing a physician for a right shoulder problem before the injury and denied receiving an injection for the shoulder before the injury. She stated "…I've never had any problems before that at all, not my left or right shoulder. This all started with my fall in 2009."

The panel noted that the worker saw a physician on November 28, 2008, four months before the injury, and on other occasions before the injury. In response, the worker advised that she did not remember any prior problem or treatment.

The worker explained that she continued to work after the accident but had to do everything with her left shoulder. The worker told the panel that she first complained to the case manager about her left shoulder problem in September 2009. She attributed her left shoulder problems to having to perform all activities with her left arm.

In answer to a question about activities she performed above shoulder height, she commented "there’s lots there to do above shoulder height." She referred to pulling product off the wall and dusting. She said that she was doing about 50% less than usual.

The worker acknowledged that she was offered an alternate position but declined the position. She said the duties included meeting customers, checking customers purchases if the security buzzer sounded and looking through customers purchases. She said there were lots of activity and movement expected in that position. She also said she was in lots of pain and taking medications.

With regards to the duties involved in meeting clients, the occupational health physician commented that:

…if…her job was to only stand there and wave with her left hand and be pleasant then, ergonomically, it doesn’t sound like it puts a lot of stress on the right shoulder.

The physician also commented that the worker was not the "best person psychologically to be a happy [alternate duties]."

Regarding the video surveillance, the worker advised the panel that she has not watched it.

The occupational health physician acknowledged that he had reviewed the video surveillance several years before, and commented that the video surveillance was used by the WCB to conclude that she could perform her regular duties. The panel noted that the worker was not considered to be fit for regular duties; rather the worker was offered modified duties and that this appeal is related to her ability to perform modified duties.

The occupational health physician commended on the surveillance. With respect to the worker's arm movement shown in the video surveillance, he noted:

When somebody does have a rotator cuff tear, an acute one, and they’re going through rehab, before they get their surgery the pendulum exercises are the ones that the physiotherapist stresses they should do most, which is hanging and let the arm hang and move, so you get movement.

In closing, the worker submitted that:

It’s not fair that the pain that I’ve been through, the surgeries, the painkillers, the sleepless nights, going through depression and stress, that has caused a lot of problems in my personal and social life…I’m not mentally fit, or physically fit to help customers, or to do any other kind of work.

The occupation health physician stated:

…what I see is a lady who has significant bilateral shoulder issues which weren’t getting resolved, and for which I felt like there was considerable delays in getting the surgical treatments that were necessary on board.

She didn’t just have a tear, a simple tear, she had a lot of complex chronic pain syndrome around her shoulders, which and she didn’t get, she didn’t get, she didn’t have WCB coverage for rehabilitation or the physiotherapy that is certainly important for best outcomes in shoulder, rotator cuff tear repairs.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not the worker is entitled to wage loss benefits after November 1, 2010

The WCB found the worker was fit for modified duties. The file information confirms that the employer offered the worker modified duties in her regular department or alternate duties. The worker ultimately refused both of these options, stopped working and has not worked since October 2010.

For the worker's appeal of this issue to be approved, the panel must find that the worker was not fit to return to work in modified duty position or light duty position, after November 1, 2010. The panel was not able to make this finding. The panel finds that the worker was fit to perform modified duties within her regular department as well as the alternate duties as of November 1, 2010.

In addressing this issue, the panel has considered the worker's functional abilities as noted by physicians and as demonstrated on the video surveillance obtained by the WCB. The video surveillance was conducted on October 12, 13, 26 and November 2, 4, 5 and 9, 2010. The panel notes that the physicians who examined her near November 2010, reported significantly more restrictions than demonstrated in the video surveillance.

The panel attaches greater weight to the video surveillance than to the reports of the severe limitations provided by the worker and treating physicians. In the video surveillance, the worker demonstrated significant functional ability. The panel finds that the video surveillance is more reliable than the worker's self reported accounts of her disability to her healthcare providers and provides the best evidence of the worker's ability. In this regard, the panel notes that concerns regarding multiple observations of pain behavior and symptom amplification had already been identified throughout the file.

The panel notes and accepts the opinion of the WCB physiotherapy consultant who examined the worker on November 9, 2010 and later assessed the surveillance evidence against his findings. The physiotherapist noted the difference between the worker's call-in examination limitations and her activities noted in the video surveillance which was conducted shortly before the call-in examination. He noted numerous movements/activities that the worker could not perform during the call-in examination but was shown performing on the video surveillance. Examples of the contrasts in her abilities included:

• in the video surveillance, the worker could walk and hold a cell phone with her right hand to her right ear but at the examination, all shoulder and elbow movements were limited, she was noted as requiring assistance lifting her arms on to a table.

• in the video surveillance, the worker independently removed her jacket with fluid right and left arm motions but in the examination the worker required assistance donning her coat.

The panel notes the body envelope limitations are not supported by the evidence of movements shown in the video surveillance.

The panel also notes that the video surveillance demonstrates significantly more functional ability than the worker demonstrated at the worksite visit conducted on November 3, 2010. On this occasion, the worker is reported to have no ability to lift either of her arms. This is clearly contradicted by the video surveillance.

The panel finds, on a balance of probabilities, that the worker was fit for modified duties after November 1, 2010. The panel finds that the worker is not entitled to wage loss benefits after November 1, 2010.

The worker's appeal of this issue is dismissed.

Issue 2: Whether or not the worker has been overpaid wage loss benefits for the period November 2 to November 29, 2010.

Given the panel's decision on Issue 1 above, that the worker was fit for modified duties after November 1, 2010, the panel finds that wage loss payments after this date constitute an overpayment as defined in Subsection 109.3 of Act as "…being an amount the board determines is in excess of that which the person is entitled."

The panel finds that the overpayment is recoverable by the WCB in accordance with the WCB's Overpayments Policy.

The worker's appeal of this issue is dismissed.

Issue 3: Whether or not responsibility should be accepted for the worker's left shoulder condition as being a consequence of the March 28, 2009 accident

For the worker's appeal of this issue to be approved, the panel must find that the worker's left shoulder condition arose out of and in the course of her employment or it a consequence of the prior compensable injury? The panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker's left shoulder injury is not a consequence of her March 28, 2009 workplace accident or of the duties she performed at her workplace.

The panel notes that worker said she first complained to the case manager about her left shoulder problem in September 2009. She attributed her left shoulder problems to having to do her work and perform all activities with her left arm and shoulder because her right shoulder was injured. In answer to a question about activities she performed above shoulder height, she commented "there’s lots there to do above shoulder height." She referred to pulling product off the wall and dusting. She said that she was doing about 50% less than usual.

In reply to a question about whether or not repetitive factors were present in the job as described by the worker, the occupation health physician commented that:

No, I mean, compared to laborious jobs using hand tools and on construction sites and in fabrication, this is not, these duties are not repetitive, sufficient to cause, in and of itself, rotator cuff strains and tears. She, so yes, I think but for that slip and fall affecting her right shoulder, her left shoulder issues I don’t think would have arisen in the exertions of what she did.

The panel considered the job duties and found that the duties involving the worker's left arm were not repetitive, did not involve significant use of the left arm above shoulder height or outside the body envelope, did not involve lifting significant weight and did not involve exertion of the left arm.

In reaching this decision, the panel also attached greater weight to the video surveillance which demonstrated significant functional ability by the worker with both her left and right shoulders.

The panel finds, on a balance of probabilities, that there is no relationship between the left shoulder complaints and the March 28, 2009 compensable accident.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of June, 2016